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How can a foreigner who has overstayed his tourist visa apply for EB-5?

Is it possible for an alien who has already overstayed his tourist visa and currently lives in the U.S. to make a $1 million capital investment in an EB-5 project and get a green card? The tourist visa is still valid, but his I-94 has expired.

Answers

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    A Olusanjo Omoniyi

    Immigration Attorney
    Answered on

    No. The petition is likely to be denied as a result of the overstay.

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    Julia Roussinova

    Immigration Attorney
    Answered on

    If the overstay is less than 180 days, you should depart and file the I-526 petition, then consular process for an immigrant visa when I-526 petition is approved in about two years. If you overstayed longer than 180 days but less than one year, the departure will trigger a three-year bar but it can be waited out while I-526 petition is pending. If overstay is one year or longer, the departure will trigger a 10-year bar and you will need a hardship waiver to get an immigrant visa.

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    Salvatore Picataggio

    Immigration Attorney
    Answered on

    Depends on how long ago the I-94 expired (because a valid visa does not mean you can stay in the U.S. forever; only the I-94 tells you how long you can hang here). Filing for the first step of the EB-5 process won't be an issue, but getting the conditional green card could be very hard.

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    Lynne Feldman

    Immigration Attorney
    Answered on

    If less than 180 days of overstay, possibly. Otherwise you will need to consular process and get a waiver of the accrued unlawful presence and three- or 10-year bar triggered.

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    Bernard P Wolfsdorf

    Immigration Attorney
    Answered on

    If you expired by less than six months, leave now and then you can re-enter in about two years after the petition is filed. If you have been here for more than six months, you are barred re-entry for three years but that only means you wait another six months or so abroad. Finally, if you overstayed more than one year, when you leave you you are barred for 10 years. However, you might be eligible for a hardship waiver if you have the necessary anchor relative and facts.

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    Marko Issever

    EB-5 Broker Dealer
    Answered on

    Unfortunately, you will not be able to adjust status in the U.S. once you have overstayed your allotted time in the I-94. Depending on your circumstances that made you stay over, you may qualify for a waiver.

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    Michael A Harris, Esq

    Immigration Attorney
    Answered on

    Depends on how much time has passed since the tourist's I-94 expired.

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    Dale Schwartz

    Immigration Attorney
    Answered on

    You cannot change your status if you are out of status.

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    Robert West

    Immigration Attorney
    Answered on

    Possibly under certain circumstances if you pick up a visa in your home country. You really need to consult with a qualified immigration lawyer to discuss the details.

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    Hassan Elkhalil

    Immigration Attorney
    Answered on

    You have to be in legal status to be able to adjust your status in the U.S. If you apply and leave the country, you may be able to come back when the I-526 is approved. You may have to file a waiver depending on how long you have been out of status.

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